Kansas Court Backs Harsher Sodomy Sentence
Washington
Post, January 30, 2003
By John Hanna
TOPEKA, Kan.—Kansas can punish
illegal sex with children more harshly when it involves homosexual acts, the
state Court of Appeals ruled Friday in a case being watched by national
advocacy groups.
Judge Henry W. Green Jr. wrote in the 2-1 decision that
legislators could justify differing penalties for homosexual versus
heterosexual sodomy in plenty of ways, including greater health risks or an
attempt to “encourage and preserve the traditional sexual mores of
society.”
The ruling by Kansas’ second-highest court rejected an
appeal by Matthew R. Limon, who was sentenced to more than 17 years in prison
for having sex when he was 18 with a 14-year-old boy in 2000. He was convicted
of sodomy.
Had Limon’s partner been an underage girl, he could
have been convicted of unlawful sex under the state’s “Romeo and Juliet”
law and sentenced at most to one year and three months in prison.
The American Civil Liberties Union, which represented
Limon, had argued that the differing sentences represented unconstitutional
discrimination against gays, especially since the U.S. Supreme Court in June
struck down state laws, including one in Kansas, criminalizing gay sex between
consenting adults.
The appeals panel said Friday that the June decision did
not apply to sex acts involving children.
The panel said lawmakers could have several reasons for
setting up differing sodomy penalties, just as they can justify making it
illegal to furnish alcohol to children but not to adults.
“The Legislature could have reasonably determined that
to prevent the gradual deterioration of the sexual morality approved by a
majority of Kansans, it would encourage and preserve the traditional sexual
mores of society,” Green wrote.
In addition, he wrote, “Medical literature is replete
with articles suggesting that certain health risks are more generally
associated with homosexual activity than heterosexual activity.”
The dissenting judge, G. Joseph Pierron Jr., said the
state had no rational basis for the differences in sentencing.
“We grant deference, not blind acquiescence, to
legislative findings,” Pierron wrote. “This blatantly discriminatory
sentencing provision does not live up to American standards of equal
justice.”
Kansas law makes any sexual activity involving a person
under 16 illegal. The 1999 “Romeo and Juliet” law, however, provides
lesser penalties for consensual sex when one partner is 19 or under and the
other partner’s age is within four years.
Kansas Attorney General Phill Kline, who had suggested
that a ruling favoring Limon could strengthen a future attack on the state’s
ban on gay marriage, called Friday’s ruling a big victory.
Tamara Lange, an ACLU attorney representing Limon, said
she planned to appeal to the Kansas Supreme Court. “This decision is not a
victory for morality or a victory for Kansas,” she said. “It’s a victory
for prejudice and fear.”
Susan Sommer, an attorney for the gay rights group Lambda
Legal who was involved in the case that led to June’s Supreme Court ruling,
said the Kansas court was “deaf to the spirit and teaching” of that
ruling.
“This is an opinion that reflects an archaic set of
attitudes about homosexuality that the U.S. Supreme Court completely
transcended,” she said.
Limon and the boy, identified in court only as M.A.R.,
lived at a group home for the developmentally disabled.
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